Opinion
No. CV 06-5007490
July 31, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #104
On November 3, 2006, the plaintiff, Omid Nodoushani commenced this action by service of process against the defendants, Southern Connecticut State University, Cheryl Norton (the university's president), Cecil Murphy (the university's vice president of human resources), and Bharat Bhalla (the university's interim dean). The twelve-count complaint alleges one count of false arrest and malicious prosecution against each of the defendants, one count of defamation against each of the defendants and one count of intentional infliction of emotional distress against each of the defendants.
On January 11, 2008, the defendants moved to dismiss the plaintiff's claims against the university and any individuals sued in their official capacity on the ground that the court lacks subject matter jurisdiction because sovereign immunity bars the claims and, furthermore, because the plaintiff did not obtain permission to file the lawsuit from the state claims commissioner.
The individual defendants were sued in their individual capacity, rather than their official capacity. "It appears that the individual defendants were sued in their individual capacity only." Memorandum of Law in Support of Amended Motion to Dismiss, dated January 11, 2008, p. 3. "In their Amended Motion, the defendants recognize and acknowledge that the individual defendants, Norton, Bhalla and Murphy, have been sued in their individual capacity only, rather than in their official capacity." Memorandum in Opposition to Amended Motion to Dismiss, January 25, 2008, p. 1. And, the claims against the individual defendants allege intentional, wanton, and reckless conduct. Therefore, this court concludes, without further discussion or articulation, that it does have subject matter jurisdiction over the individual defendants. See, e.g. Miller v. Egan, 265 Conn. 301, 319, 828 A.2d 549 (2003) ("State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment").
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, supra 278 Conn. 211. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).
The defendants argue that the court lacks subject matter jurisdiction over the claims against the university in counts one, five and nine because sovereign immunity affords the state agency protection from claims for money damages unless the claims commissioner has approved the action pursuant to General Statutes § 4-142. The plaintiff counters that the motion to dismiss should be denied because state sovereign immunity does not bar his claims alleging wanton, reckless or malicious conduct.
The jurisdiction of the claims commissioner is set forth in General Statutes § 4-142, which provides that "[t]here shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit is otherwise authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes."
"It is a well-established rule of the common law that a state cannot be sued without its consent . . . A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends . . . The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property." (Citations omitted; internal quotation marks omitted.) Lyon v. Jones, 104 Conn.App. 547, 552, 935 A.2d 201 (2007).
"As we previously have stated, the sovereign immunity enjoyed by the state is not absolute. There are exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity; . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." DaimlerChrysler Corp. v. Law, 284 Conn. 701, 720, 937 A.2d 675 (2007).
The plaintiff in this case has asserted three claims against Southern Connecticut State University. In the first count the plaintiff alleges that the university's actions constituted false arrest and malicious prosecution under the "Constitution of the State of Connecticut and the United States." The plaintiff also alleges claims for defamation and intentional infliction of emotional distress. All three counts seek money damages. None of the three counts against the university fall within any of the recognized exceptions to the sovereign immunity doctrine. Therefore, the motion to dismiss the claims against Southern Connecticut State University is granted.
For the foregoing reasons, the motion to dismiss counts one, five and nine is granted. The court treats the remaining counts against the individual defendants as claims against the defendants in their individual capacity, alleging intentional, wanton or reckless conduct outside the scope of the defendants' employment.